Punjab & Haryana High Court Grants Bail To Congress MLA Sukhpal Singh Khaira In 2015 Drugs Case

The Punjab & Haryana High Court has granted bail to Congress MLA from Punjab's Bholath, Sukhpal Singh Khaira in 2015 International Drugs trade case, observing that he "cannot be said to be prima facie guilty for any allegations".

Khaira was arrested on September 28, 2023 in a case related to massive heroine trade. Eight accused were arrested in the FIR earlier and later Khaira was added in additional prosecution proceeding for having connections with one of the accused.

Justice Anoop Chitkara said that, "it can be inferred at this stage that for the purpose of satisfying the rigors of section 37 of NDPS Act, the petitioner cannot be said to be primafacie guilty for any allegations, and its most likely effect on the final outcome would be sufficient for satisfaction of conditions of Section 37 of NDPS Act."

While opining that the case for bail is made out, the bench also explained the intricacy involved under Section 37 for granting bail when the case involves commercial quantity of contraband.

The Court observed that satisfying the fetters of Section 37 of the NDPS Act is like "candling the infertile eggs." The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, i.e., punishable under section 19 or section 24 or section 27A and also for offences involving commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail petitions under general penal statutes, it added.

"Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail application. The second stipulation is that the court must be satisfied that reasonable grounds exist for believing that the accused Is not guilty of such an offence and is not likely to commit any offence while on bail. If either of these conditions is not met, the bar on granting bail operates," said the Court.

It further explained that the expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing the accused is not guilty of the alleged offence.

Justice Chitkara further said that even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again. "Thus, the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon Its facts," added the Court.

Facts In Brief 

In 2015, According to prosecution as per the secret information international drug mafia was operating at the Pakistan border, and one person named Harbans Singh, who owned land at the border of India and Pakistan was facilitating the drug smuggling, taking advantage of the proximity to Pakistan border. After completing the procedural requirement, a substantial number of police officials raided the premises and recovered massive amounts of Heroin, gold, and pistols from various accused. 

In February 2023, Khaira was added in additional prosecution proceeding for having connections with one of the accused.

Khaira was booked under Sections 21, 24, 25, 27, 28, 29, 30, 27-A, 27-B of Narcotics Drugs and Psychotropic Substances Act, 1985 [NDPS Act] and Section 25-A of Arms Act and Section 88 of IT Act.

The Senior Advocate, for the petitioner argued that the petitioner had been arrested because he parted was with the Aam Aadmi Party [AAP]. which is now the ruling party in Punjab. However, the Court refused to comment on this submission.

Considering the submissions, the Court said, "the petitioner's custodial interrogation did not lead to the recovery of any other incriminating evidence, and once an accused has already been subjected to custodial interrogation, the parameters to assess the evidence collected so far are different than while dealing with an anticipatory bail because the accused in such a situation was not subjected to the custodial interrogation, which is undoubtedly more productive to gather evidence."

On allegations of having connections with the accused involved in the drug trade on the basis of disclosure statement, the Court noted that, the evidentiary value of a disclosure statement made by a co-accused, whose pardon has been approved, and the absence of any other evidence connecting the petitioner, it can be inferred at this stage that for the purpose of satisfying the rigors of section 37 of NDPS Act, the petitioner cannot be said to be prima facie guilty for any allegations, and its most likely effect on the final outcome would be sufficient for satisfaction of conditions of Section 37 of NDPS Act.

Regarding the second rider of Section 37, the  Court said that it will put very stringent conditions in the order to ensure that the petitioner does not repeat the offence.

Justice Chitkara opined that given the above, once the petitioner has satisfied the riders of section 37 of the NDPS Act, the the bail has to be dealt with under CrPC, 1973, and there is no justification to deny bail.

The Court referred to catena of cases including N.C.B. Trivandrarum v. Jalalaluddin, 2004, wherein the  Apex Court observed that "...be that as it may another mandatory requirement of Secton 37 of the Act is that where Public Prosecutor opposes the bail application, the court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. In the impugned order we do not find any such satisfaction recorded by the High Court while granting bail nor there is any material available to show that the High Court applied its mind to these mandatory requirements of the Act."

Reliance was also placed upon, Mohd. Muslim alias Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352, Supreme Court held, "A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence would effectively exclude grant of bail altogether. resulting in punitive detention and unsanctioned preventive detention as well. Therefore the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record whenever the bail application is made that the accused is not guilty."

While imposing certain restrictions on the petitioner, the Court allowed the petition.

Appearance: Vikram Chaudhri, Sr. Advocate with Keshavam Chaudhri with advocates 

Parvez Chaudhary, Hargun Sandhu, Digvijay Singh,  and Rishab Tiwari for the petitioner

Harin P. Raval, Sr. Advocate with Gurminder Singh, AG Punjab, Luvinder Sofat, D.A.G., Punjab and Shiva Khurmi, A.A.G., Punjab.

Citation: 2024 LiveLaw (PH) 06

Case Title: Sukhpal Singh Khaira v. State of Punjab

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